July 05, 2016

Case Closed: Closet Stays Open

Dear Friends,

Unless you’ve been spending your day in transcendental meditation, you know that the FBI has concluded its work on the Hillary Clinton e-mail investigation with a recommendation to Department of Justice prosecutors that no criminal charges be brought.

To bring TMR readers up to speed, we are including links to two essential sources:

• Director James Comey’s full statement

• A concise, cogent analysis of the legal and political implications of the FBI’s findings by Benjamin Wittes, co-founder of the highly regarded Lawfare blog, senior fellow at the Brookings Institution, and for a decade the Washington Post’s editorial board voice on legal and jurisprudential matters.

First, some highlights from Director Comey’s press conference this morning:

“This will be an unusual statement in at least a couple ways. First, I am going to include more detail about our process than I ordinarily would, because I think the American people deserve those details in a case of intense public interest. Second, I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.

“Now let me tell you what we found:

“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.

“In our system, the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect . . . In this case, given the importance of the matter, I think unusual transparency is in order.

“Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.

“In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts.”

Finally, Ben Wittes’ ‘quick and dirty analysis’ of Comey’s statement and the FBI report, which concludes with this observation:

“Comey's full statement is a peculiar document because it is simultaneously emphatic that Clinton and her staff behaved inappropriately and equally emphatic that no reasonable prosecutor would want to bring a case against them. His reputation for personal probity and apolitical behavior is such that both statements must be taken seriously. The former should be profoundly embarassing to Clinton. The latter should put to rest the notion that she should face charges. If she is to face accountability for her email server, that accountability will and should be in the political realm.”